This week, the Irish High Court has decided to ask the European Court of Justice
to rule whether EU communications data retention rules violate the EU Charter
of Fundamental Rights. The highest courts of Romania and Germany
have already ruled that national legislation mandating the retention of records on
everybody's telecommunications ("data retention") was unconstitutional.

The Irish High Court decided that data retention had the potential to be of
"importance to the whole nature of our society".[1] "[I]t is clear that where
surveillance is undertaken it must be justified and generally should be
targeted". The Court ruled that civil liberties campaign group Digital
Rights Ireland had the right to contest "whether the impugned provisions
violate citizen's rights to privacy and communications".

Sandra Mamitzsch of the German Working Group on Data Retention
responds: "To avoid a defeat before the European Court of Justice the
European Commission must propose swift amendments to the
unconstitutional data retention directive. The EU-wide compulsion to
collect communications data is outdated and must be repealed. Blanket
data retention has proven to be superfluous, harmful or
unconstitutional in many states across Europe and the world, such as
Germany, Austria, Belgium, Greece, Romania, Sweden and Canada. These
states prosecute crime just as effectively using targeted instruments,
such as the internationally agreed Convention on Cybercrime[2]."

"Until the European Court of Justice has decided on the validity of the data
retention directive, no further data retention laws should be enacted", warns
Patrick Breyer of the German Working Group on Data Retention. "Member
states should now notify the EU Commission that they exert their right not to
transpose the data retention directive on grounds of public policy (article 114
(4) TEU). We expect the European Court of Justice to follow the Constitutional
Courts of Romania and Germany and rule blanket data retention unconstitutional.
The EU regulations must therefore be made more flexible to allow for alternative
procedures that work more intelligently than by stockpiling untargeted personal
data."

Background:

A 2006 EU directive requires every EU member state to
compel phone and Internet companies to collect data about their
customers' communications.[3] In September 2009 the Constitutional Court
of Romania ruled that such indiscriminate data retention violates "the
rights to private life, secrecy of the correspondence and freedom of
expression."[4] In March 2010 the German Federal Constitutional Court
found the German provisions on data retention "as a whole
unconstitutional and void".[5]

The European Commission is currently reviewing the EU data retention directive.[6]
German Minister of Justice Sabine Leutheusser-Schnarrenberger,
representing Germany in the EU Council, has yet to expressly call for
the abolition of data retention. In April more than 40 German
organisations and associations asked her in a joint letter to "push for
the abolition of EU telecommunications data retention requirements".[7]
On 25 April, the German Liberal Party (FDP) passed a motion proposed by
Leutheusser-Schnarrenberger and others, saying that "there must be no
deviation from the principle that lies at the heart of the rule of law,
providing that a person needs to anticipate state surveillance and
investigation only if under suspicion. Surveillance of all citizens in
the absence of suspicion such as by means of data retention violates
this principle. The Liberal Party therefore commits to improving the
law enforcement authorities' personnel and physical resources".[8]